Ford v. New Orleans Regional Transit Authority

United States District Court, E.D. Louisiana

January 23, 2018

HENDERSON FORDv.NEW ORLEANS REGIONAL TRANSIT AUTHORITY

SECTION
A

ORDER AND REASONS

JUDGE
JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

Before
the Court is a Motion to Dismiss Under Rules 12(b)(1)
and 12(b)(6) (Rec. Doc. 9) filed by Defendant New
Orleans Regional Transit Authority. Plaintiff Henderson Ford
opposes the motion. (Rec. Doc. 10). The motion, set for
submission on December 13, 2017, is before the Court on the
briefs without oral argument. Having considered the motion
and memoranda of counsel, the record, and the applicable law,
the Court finds that the Defendant's motion should be
DENIED for the reasons set forth below.

I.
Background

Plaintiff
Henderson Ford filed this action pro se alleging
that Defendant New Orleans Regional Transit Authority (the
“Transit Authority”) violated the Americans with
Disabilities Act, the Rehabilitation Act, and the Louisiana
Civil Rights Act for Persons with Disabilities. (Rec. Doc. 1,
p. 1). Ford asserts these claims under federal and state law
seeking to recover any relief available including
compensatory damages in the form of $50, 000.00 for mental
anguish, $50, 000.00 for violating his civil rights under the
ADA, $50, 000.00 for violating his civil rights under the
Louisiana Civil Rights Act for Persons with Disabilities,
past and future medical expenses, court costs, and
attorney's fees. Id. at pp. 6-7.

The
following factual allegations, accepted as true, are taken
from Plaintiff's Complaint. (Rec. Doc. 1).[1] Ford is a
handicapped person. His right leg has been amputated six
inches below his knee. This disability requires Ford to use a
wheelchair to get around. Ford uses public
transportation-notably, buses and streetcars operated by the
Transit Authority-to travel around New Orleans. On September
9, 2017, Ford took the St. Claude bus to the Med-Pro Pharmacy
on St. Claude Avenue to get his medication. After boarding
the bus, the driver failed to properly secure the bus's
safety harnesses to Ford's wheelchair. While the bus was
moving, the wheelchair started “going up.” Ford
was forced to hold onto the bus seat and apply pressure so
that the wheelchair would stay grounded. A block before
arriving at his destination, Ford's head almost hit the
top of the bus. However, two passengers caught Ford before
his head could hit the bus ceiling.

Thereafter,
Ford told the bus driver that he would like to make a
complaint. The driver got annoyed, but she called her
supervisor. Two supervisors arrived on the scene and Ford
explained what happened. The two passengers and bus driver
also gave their account of the incident. Thereafter, Ford and
one of the supervisors “had a few words.” The
supervisor told Ford to get off the bus. Ford then told the
supervisor to check the camera, and asked the supervisor to
call the police and ambulance. However, the supervisor told
Ford there was no bleeding and that neither the police nor
the ambulance would be called. Ford felt dizzy and ultimately
called an ambulance, which took him to the hospital. Upon
seeing a doctor, Ford was told his treatment should include
observation at home and pain medication such as Tylenol,
Ibuprofen, or Advil.

Ford
contends that before and after this incident, he feared
getting hurt on the buses and streetcars because drivers
failed to properly strap his wheelchair into a safe position.
Ford also alleges that the drivers are going too fast and
passing up the areas designated as bus stops. By passing the
bus stop areas, the buses will sometimes have to park in the
street. This causes the buses to stop at a very steep angle,
which forces Ford to have to ask fellow passengers or
strangers to help him onto the bus because some of the
drivers will not help.

Ford
also contends that on Saturday, September 23, 2017 at about
8:30 a.m., he caught the Elysian Fields bus. On that bus, the
driver took an overhead safety strap and strapped it to
Ford's waist strap. This was the first time any bus
driver used the overhead safety strap and Ford did not know
the buses were equipped with such a strap until that date.
Ford then provides a list of buses he uses every month and
alleges to have pictures with the safety straps used to
secure him while riding these buses.[2]

Ford
filed the instant Complaint pro se and in forma
pauperis on October 5, 2017. No trial date is set at
this time. Via the instant motion, the Transit Authority
seeks to dismiss Ford's Complaint in its entirety
pursuant to Federal Rules of Civil Procedure Rule 12(b)(1)
and 12(b)(6). The parties' respective arguments are
discussed below.

II.
Legal Standard

Federal
Rule of Civil Procedure 12(b)(1) provides the vehicle by
which a party can challenge a court's subject matter
jurisdiction to hear a particular issue. In general, where
subject matter jurisdiction is being challenged under Rule
12(b)(1), the trial court is free to weigh the evidence and
resolve factual disputes to satisfy itself that it has power
to hear the case. Montez v. Dep't of Navy, 392
F.3d 147, 149 (5th Cir. 2004) (citing Land v.
Dollar, 330 U.S. 731 (1947)). No presumptive
truthfulness attaches to the plaintiff's allegations and
the court can decide disputed issues of material fact in
order to determine whether or not it has jurisdiction to hear
the case. Id. However, where issues of fact are
central both to subject matter jurisdiction and the claim on
the merits, the trial court must assume jurisdiction and
proceed to the merits of plaintiff's case under either
Rule 12(b)(6) or Rule 56. Id. (citing Williamson
v. Tucker, 645 F.2d 404 (5th Cir. 1981)).

Under
well-settled standards governing Rule 12(b)(6) motions to
dismiss, a claim may not be dismissed unless it appears
certain that the plaintiff cannot prove any set of facts that
would entitle him to legal relief. In re Supreme Beef
Processors, Inc., 468 F.3d 248, 251 (5th Cir. 2006)
(citing Benton v. United States, 960 F.2d 19 (5th
Cir. 1992)). To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. A court must accept all
well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc.,565 F.3d 228, 239 (5th Cir. 2009). But
the Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at
678.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A
legally sufficient complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Id. In other words, the face of the
complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff&#39;s claim. Lormand,
565 F.3d at 257. If there are insufficient factual
allegations to raise a right to relief above the speculation
level, or if ...

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